Alienation of Affections & Criminal Conversation

Alienation of affections and criminal conversation are two separate claims that are often paired together. Both claims are civil actions, also known as “heart balm” actions, which are brought against a third party lover, commonly referred to in litigation as a “paramour.”

For example, let’s say a couple is married. Very generally speaking, the wife has an extramarital relationship that may or may not include sexual relations. As a result of the conduct of the wife’s paramour, the wife’s relationship with her husband diminishes. The husband (plaintiff) then may attempt to sue the wife’s paramour (defendant) for either alienation of affections and/or criminal conversation. Alternatively, if a husband has an extramarital relationship, the wife may attempt to sue his paramour. Both claims have a three year statute of limitations.

These claims are not typically favored in North Carolina. The Court of Appeals has attempted to abolish them on numerous occasions, but was very quickly reversed by the Supreme Court. Nonetheless, the possibility of abolishment grows every year as our legislature views these claims as increasingly antiquated.

Alienation of Affections

Alienation of affections is a civil action against a third party lover because that lover’s conduct deprived the plaintiff of the genuine love, affection, companionship and comfort that previously existed between the plaintiff and his or her spouse. The plaintiff does not have to show evidence of adultery.

The Elements for a Claim of Alienation of Affections

First, it is important to consider that the elements of this claim are tricky because of its very nature. For instance, what is genuine love and affection? How can a jury determine that the love and affection that allegedly existed between a married couple was destroyed because of a third party’s actions? Does the third party have to have sex with the plaintiff’s spouse in order to cause him or her to alienate the affections from that spouse? How can you determine what is wrongful and malicious conduct? Or, that the conduct was the controlling cause of the alienation? What kind of damages are we talking about? How can you put a dollar amount on a lost relationship?

The spouses were happily married and a genuine love and affection existed between them.

It is hard to pinpoint the definition of genuine love and affection. The plaintiff only needs to establish that some love and affection existed at the time of defendant’s actions. Alternatively, let us consider some factors that may tend to show when genuine love and affection did not exist in a marriage. This element is incredibly important because it is often the strongest defense for a defendant. For example, if the married couple had been to counseling or had discussed separation for many months or years prior to the plaintiff’s spouse meeting the paramour, then it is likely that one could argue there no longer existed genuine love and affection. While it is possible this is a strong argument, there is some North Carolina case law suggesting otherwise. One case involves a married couple who had separated prior to the paramour’s involvement. This separation was not important. The fact that the married couple had resumed their relationship was evidence that they had somehow managed to maintain the necessary genuine love and affection for purposes of the claim. Other case law suggests that even if a plaintiff had an affair during the marriage, then the genuine love and affection is still not negated for purposes of proving the paramour’s wrongful conduct led to the alienation of the spouse’s affections. As you can see, these cases are very fact specific, thus whether a marriage had genuine love and affection is ultimately a question for the jury to decide.

The love and affection between the spouses was eliminated and destroyed.

This element is typically clear if the married couple has separated or divorced immediately subsequent to the relationship with the paramour. Alienation of affections claims must be based on pre-separation conduct. However, courts allow post-separation conduct to help corroborate pre-separation conduct.

The paramour's wrongful and malicious conduct was the controlling or effective cause of the alienation.

It is the plaintiff’s burden to establish that the loss of affection was due to the defendant’s wrongful and malicious conduct. This element can be broken down into two parts.

First, what is malicious or wrongful conduct? According to Black’s Law Dictionary, malice, by definition, is “the intent, without justification or excuse, to commit a wrongful act.” In cases of alienation of affections, malice is presumed if the act of seduction or adultery (sexual intercourse) is shown. However, other actions performed by the paramour may rise to the level of malicious or wrongful conduct. For instance, conduct such as excessive telephone calls to and from the plaintiff’s spouse may be enough for a jury to consider the conduct malicious and wrongful if it determines that the paramour knew the potential harm his or her conduct may cause.

Second, were the defendant’s actions the proximate cause of the loss of genuine love and affection? It must be proven that the wrongful acts of a defendant are the controlling or effective cause of the alienation, even if there are other causes which may have contributed to the alienation. The paramour does not necessarily have to instigate the resulting alienation. Affirmative conduct from the paramour will be sufficient. For example, in one North Carolina case, the paramour involved with the plaintiff’s spouse said to the plaintiff, “I am sorry I have done this to you.” When this was coupled with evidence of a hotel reservation, it was enough for a jury to find that the defendant’s conduct caused the plaintiff’s spouse to alienate her affections from him. Moreover, there is no need to show that the paramour was motivated by ill will towards the plaintiff. Finally, there is no need to show that the spouse and paramour even had sexual intercourse.

The alienation has damaged the other spouse.

Damages are typically defined as a monetary compensation for a loss. There are two types of damages to be considered: compensatory damages and punitive damages.

Compensatory damages compensate the plaintiff for the harm caused by the defendant’s conduct. Generally, those damages would include expenses incurred by the plaintiff for therapy costs, prescription medicine costs (if the plaintiff is facing long-term depression or mental illness resulting from his or her spouse’s alienation), loss of services in the home (day-to -day household chores), loss of support (present and future earnings of his or her spouse), loss of consortium (sexual relations), emotional distress, injury to the plaintiff’s reputation, costs of litigation (including costs associated with the alienation of affections claim as well as the domestic case that may have resulted from a breakup of the plaintiff’s marriage). As you can imagine, placing monetary value on some of these losses can be very difficult.

Punitive damages are damages intended to punish a defendant. For the question of punitive damages to be submitted to a jury, there must be evidence of circumstances of aggravation beyond the proof of malice necessary to recover compensatory damages. These specific circumstances of aggravation include willful, wanton, aggravated or malicious conduct. So, first a plaintiff must show evidence of malice. If the paramour and the spouse had sexual relations, it is likely that malice will be implied. Second, a plaintiff must show the paramour aggravated the conduct. Some may say the paramour poured salt in an open wound. What are some specific circumstances of aggravation? In one case, sufficient evidence of aggravation to justify a punitive damages award existed where the plaintiff presented evidence that the plaintiff’s spouse and the paramour had sex at least two times, the paramour accompanied the plaintiff’s spouse when returning the children to the custody of the plaintiff, the paramour appeared unannounced at front door of the marital home to ask the plaintiff if they could be friends, and the paramour arrived in the driveway of the marital home while plaintiff was visiting his children. Other circumstances that might suggest that the circumstances have been aggravated by the defendant’s conduct may include a defendant calling the plaintiff’s spouse hundreds of times while having the knowledge of the marriage.

Under North Carolina law, punitive damages are never awarded merely because personal injury is inflicted, nor are they measured by the extent of the injury; rather, they are awarded because of the defendant’s outrageous conduct. However, with outrageous conduct established, a jury still may not find a defendant should be punished. Finally, in order to recover punitive damages, a jury must first award compensatory damages, even if those compensatory damages are nominal. Then, depending on the evidence presented, a jury can determine whether the evidence is sufficient to show that punitive damages should also be awarded.

Defenses to alienation of affections claims

Three year statute of limitations;

There was no love and affection that existed between the plaintiff and his or her spouse;

Consent or connivance of the plaintiff;

The defendant’s ignorance of the existence of the marriage is an affirmative defense that must be pled and proved.

Criminal Conversation

Criminal conversation is another way of saying adultery. This claim is comparable to strict liability in a tort action in that if your spouse has sexual relations with a third party then that third party is guilty of criminal conversation and civil damages may be sought against him or her.

The Elements for a Claim of Criminal Conversation

A lawful marriage existed.

Showing a lawful marriage is typically the easiest element to prove. Under North Carolina law, a valid and sufficient marriage is created by the consent of two people who may lawfully marry and whom contract for marriage as prescribed by law.

Sexual intercourse between the defendant and plaintiff's spouse, without plaintiff's consent.

This element can be very easy or very difficult to prove. First, the plaintiff must prove that sexual intercourse has occurred between the plaintiff’s spouse and a third-party lover. If a plaintiff has physical evidence of his or her spouse and a third party having sexual intercourse, then this element is proven automatically. This evidence can be either testimony and/or physical evidence such as photographs or video. This is rarely the case. More often, it is not that simple. In those situations, a plaintiff must show that his or her spouse had what is called an “inclination and opportunity” to commit adultery (sexual intercourse). How do you show inclination and opportunity? It varies from case to case. In one case, a Florida man called the plaintiff’s wife at home almost every night. The plaintiff asked the defendant to stop calling his wife. Eventually, the plaintiff’s marriage to his wife collapsed. However, the Court of Appeals stated that mere conjecture about sexual intercourse is not enough and that inclination and opportunity must also be present. Thus, a plaintiff must show circumstantial evidence. For example, a plaintiff may have evidence of a hotel key with reservations made and witness testimony that the plaintiff’s wife and the defendant went into the hotel room at night and departed early the next morning wearing different clothes. This may be considered inclination and opportunity. However, it is essential to remember that this question is one for the jury to decide and therefore often extremely difficult to prove without compelling evidence.

Secondly, it must be shown that the plaintiff did not consent to his or her spouse’s conduct with a third party. If the plaintiff consented to the action, then he or she has no claim for criminal conversation (or alienation of affections). BUT, the act of forgiveness or continuing to live with the spouse after the fact does not constitute consent. A defendant’s evidence of consent is a strong defense to this claim. It does not matter if the plaintiff’s spouse consents to the sexual conduct. In addition, it does not matter if the plaintiff’s spouse tells the defendant that he or she is not married. Criminal conversation is a strict liability action.

As in claims for alienation of affections, there are two types of damages to be considered in criminal conversation claims: compensatory damages and punitive damages. A jury may consider the issue of punitive damages for criminal conversation based solely upon evidence that the defendant engaged in sexual intercourse with the plaintiff’s spouse. Once established, the plaintiff is entitled to recover, as a matter of law, nominal damages which in turn support a punitive award. However, it is important to remember that damages are also a question for the jury and nominal damages can be as little as $1.00.

Defenses to criminal conversation claims

Three year statute of limitations;

Connivance

Consent of plaintiff’s spouse is not a defense

Plaintiff’s own adultery is not a defense

Experienced Attorneys in Complex Family Law Matters

The issues in alienation of affections and criminal conversation matters are highly complex. It is critical to seek the guidance of an experienced family law attorney if you wish to pursue these claims or are being sued for these claims. The attorneys at Hatcher Law Group have a strong understanding of the legal issues involved in these cases, as well as the emotional and personal impact these cases can have on our clients. We have significant experience representing parties on either side of these claims. Please contact us for more information or to schedule a consultation with a family law attorney.